01A20864
08-28-2003
Sharon R. Frisk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sharon R. Frisk v. United States Postal Service
01A20864
08-28-03
.
Sharon R. Frisk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20864
Agency No. 4I-553-0073-99
Hearing No. 260-A1-9105X
DECISION
Complainant initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
allegation that the agency violated Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the complainant's appeal from the agency's final order in the
above-entitled matter pursuant to 29 C.F.R. � 1614.405.
The issue presented in this appeal is whether complainant proved, by a
preponderance of the evidence, that she was discriminated against when
(1) she was sexually harassed by her supervisor beginning in May 1997;
and (2) she was discriminated against on the basis of her sex and/or in
retaliation for engaging in previous EEO activity when she was terminated
on June 12, 1999.
The agency complied with all procedural and regulatory prerequisites.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
However, the AJ, after concluding that there were no genuine issues
of material fact, issued a decision in the agency's favor finding no
discrimination. Thereafter, the agency issued a notice of final action
adopting the AJ's decision as its final order.
The record indicates that complainant was employed by the agency as a
Part-time Flexible Clerk. On or about June 1990, she was transferred
to the Stables Post Office. At that time, A-1, the Postmaster, became
her supervisor. Based on documentation contained in the record, the AJ
found that in 1993, complainant and A-1 began a sexual relationship.
Complainant attempted to end the relationship in March 1995, May 1997
and February 1999. In March 1995, complainant accepted a detail to an
Officer-In-Charge position at the Cushing Post Office. This lasted
three months. A-1, citing hardship, brought her back to the Staples
Post Office after another employee was injured. In April 1997, A-2,
the Manager of Post Office Operations, asked A-1 if he was having an
affair with a Clerk. A-1 denied having an affair. Complainant was
in A-1's office at the time of the telephone call. In May 1997,
complainant contacted an Employee Assistance Program (EAP) counselor.
Among other things, the counselor's notes indicate that complainant
was in an unhappy marriage that she wanted out of and she was having
an affair that had been going on for four years. Although complainant
indicated that she did not want to remain in her marriage, she stated
that she did not want �jump in further with [A-1].� In February 1999,
complainant told A-1 that their relationship was over.
On April 5, 1999, two Postal Inspectors questioned complainant about her
relationship with A-1. Complainant indicated that she and A-1 were good
friends. C-1, a coworker, had contacted management about the relationship
between complainant and A-1. Upon searching her locker, the Inspectors
found approximately 100 romantic cards and notes written by complainant
and A-1 to each other. There were also nude and semi-nude photographs
of complainant and A-1 taken at the Stables Post Office. Afterward,
complainant provided a sworn statement indicating that she and A-1 �have
had an affair,� during the preceding six years. The investigation also
determined that, on several occasions, complainant and A-1 engaged in
sexual conduct in A-1's office and that the relationship had an adverse
effect on the office.
On April 7, 1999, complainant and A-1 were placed in an emergency
off-duty status, with pay. On April 15, 1999, complainant contacted
an EEO counselor. This was ten days after her interview with the
Postal Inspectors. According to complainant, A-1 told her to file a
sexual harassment charge when he knew an investigation was imminent.
See Complainant's Statement Of The Facts, p 4.
On May 7, 1999, the agency issued a Notice of Removal to complainant
and a Notice of Proposed Removal to A-1. A-1 entered into a MSPB
settlement with the agency. He accepted a downgrade from Postmaster,
EAS-18, to Part-time Flexible Clerk, PS-5. Complainant, on August 13,
1999, settled a union grievance that she had filed. In accordance with
the settlement, complainant was transferred to another Post Office at
the same pay, grade and position.
The AJ found that complainant failed to establish a claim of sexual
harassment because the record indicated that she engaged in a consensual
sexual relationship with A-1; therefore, she could not show that
A-1's actions were unwelcome. The AJ found that all the evidence in
the record contradicted the assertion in her EEO affidavit that the
relationship was, for the most part, nonconsensual. In this regard,
the AJ noted complainant's statements to the EAP counselor in 1997 and
the Postal Inspectors in 1999, where she did not mention that she was
being subjected to unwelcome conduct, but instead characterized her
relationship with A-1 as �an affair.�
Furthermore, the AJ noted complainant's regular telephone calls to A-1's
home<1>, numerous notes expressing her love for A-1, and nude photographs
of herself taken by A-1 and she of him in the workplace. The AJ indicated
that although complainant was urged to provide affidavits from family,
friends or co-workers whom she confided in that she was being harassed
by A-1 or that she was afraid to complain to the appropriate authority,
she did not provide anything. On the contrary, C-1's testimony indicated
that complainant stated that she and A-1 were in love and that she talked
about divorcing her husband and marrying A-1. The coworker testified that
she saw A-1 �kiss her, give her hugs, back rubs and pat her on the bottom.
She did not take offense to this. She loved the attention from him.�
Assuming that complainant had been able to establish a claim of
harassment, the AJ found that the agency could raise an affirmative
defense because a tangible employment action was not involved here.
The AJ found that complainant did not take advantage of any preventive
or corrective opportunities provided by the employer from 1993 through
April 1999. The AJ noted that, during complainant's employment at
the Stables Post Office, there were five posters relating to sexual
harassment and the agency's policy. Three publications on EEO matters
and sexual harassment were mailed to complainant and other employees.
Finally, the employees at Stables Post Office received annual sexual
harassment training. Although complainant did not recall any of the
above, she did remember seeing a video of some kind.
Finally, the AJ found, in pertinent part, that even if complainant
established a prima facie case of discrimination based on sex or
retaliation with respect to her termination, the agency articulated
legitimate, non-discriminatory reasons for its actions, i.e.,
complainant's conduct on agency property. Complainant, according to
the AJ, provided no evidence of pretext.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, we affirm the agency's final order.
Construing the record evidence in a light most favorable to complainant,
the Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08-28-03_____________
Date
1The record indicates that, in November, December 1998, January, February,
April and May 1999, complainant called A-1 regularly at his home.
See Exhibit 11.